Sankey v Bollig

The parties to this dispute were Mr Sankey and Bollig, who provided architectural services to Aureus Commercial for the Port Rockingham Marina Project. Mr Sankey alleged that Bollig had infringed his copyright in certain drawings, which he claimed were still in use. Bollig defended these claims by asserting a licence to use the drawings, the applicability of statutory presumptions under the Copyright Act 1968 (Cth), and that any infringement was innocent. Bollig also denied any misleading conduct under the Australian Consumer Law. The matter came before Lucev J in the Supreme Court of Western Australia.

The central legal issues before the Court were whether Bollig had a licence to use the Sankey drawings, whether the statutory presumptions regarding copyright subsistence and ownership under sections 126A, 126B, and 127(1) of the Copyright Act 1968 (Cth) applied to Bollig's use, and whether any infringement of copyright by Bollig was innocent under section 115(3) of the Copyright Act 1968 (Cth). Additionally, the Court was required to determine if Bollig had engaged in misleading or deceptive conduct under the Australian Consumer Law.

Due to the extensive procedural history and the need for further consideration of evidence, specifically concerning a proposed affidavit by Mr Sankey, the Court determined that an adjournment of the hearing was necessary. The Court noted that various parts of a proposed affidavit had been withdrawn or declared not relied upon, and it was not appropriate to grant leave to file it in its current form. The Court indicated that Mr Sankey might wish to consider filing a varied affidavit.

Consequently, on 17 May 2021, Lucev J ordered that the hearing be adjourned to a directions hearing on 21 May 2021, and the substantive hearing be adjourned to the week commencing 30 August 2021. The costs of the adjournment were reserved, to be determined after the primary issues in dispute had been adjudicated.